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Fedynich v. Inn Between of Longmont

United States District Court, D. Colorado

August 15, 2018



          William J. Martínez, United States District Judge.

         Plaintiffs Elizabeth Fedynich and Nicole Fedynich (jointly, “Plaintiffs”), proceeding pro se, bring claims against Defendant The Inn Between of Longmont (“Defendant”), alleging violations of the Federal Housing Act (FHA) and breach of contract. (ECF No. 16 (“Complaint”).) Defendant moved to dismiss for failure to state a claim. (ECF No. 23 (“Motion”).) United States Magistrate Judge Scott T. Varholak filed a Report and Recommendation recommending that Defendant's Motion be granted with respect to Plaintiff's breach of contract claim and denied with respect to Plaintiff's FHA claims. (ECF No. 49 (“Recommendation”).) Plaintiff filed an Objection to the Recommendation. (ECF No. 54 (“Objection”).)[1] Defendant responded to Plaintiff's Objection (“Response”) (ECF No. 58), but did not timely file an Objection of its own.[2] For the reasons set forth below, the Court overrules Plaintiff's Objection and adopts Judge Varholask's Recommendation in its entirety.


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id. An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and is specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). “When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72(b) advisory committee's note; see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”).

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” In evaluating such a motion, a court must “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). The dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         Further, the Court is mindful of Plaintiffs' pro se status, and accordingly reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiffs, who still must comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).


         Neither party objects to the recitation of facts set forth by Judge Varholak in the June 1, 2018 Recommendation. (ECF No. 49 at 2-6.) Accordingly, the Court adopts and incorporates Section I of that Recommendation as if set forth herein.

         Briefly, Defendant is a non-profit agency that manages affordable housing units. (ECF No. 23 at 1.) Plaintiffs leased one of these units from Defendant and moved in on June 21, 2017. (ECF No. 16 at 8.) Prior to moving in, Plaintiffs informed Defendant that they both suffered from chronic asthma, pleurisy, and multiple chemical sensitivity, and that cigarette smoke was very harmful to their health. (Id. at 7.) Defendant has a policy that prohibits smoking inside the apartments and assured Plaintiff that it “would take action against anyone who smoked indoors in violation of the lease.” (Id. at 8.) The lease agreement also prohibits the sale, use, or cultivation of marijuana on Defendant's properties. (ECF No. 23-2 at 5.)

         On their first evening living in the apartment, Plaintiffs noted that “the apartment reeked heavily of cigarette smoke.” (ECF No. 16 at 8 (emphasis omitted).) Plaintiffs notified Timothy Rakow (“Rakow”), Defendant's Associate Director, by e-mail on June 22, 2017. (Id.) Defendant contacted residents about the indoor smoking policy and explained about Plaintiffs' respiratory issues. (Id.) That evening Plaintiffs reported that the apartment smelled fresh and residents were smoking outside. (Id.) However, on June 23, Plaintiffs contacted Rakow because the cigarette smell had returned and residents were not smoking outside. (Id.) The next day, June 24, Plaintiffs reported smelling marijuana smoke in the building. (Id.) Plaintiffs also personally informed their neighbor that the smell of marijuana makes them extremely nauseous. (Id.) Plaintiffs' neighbor apologized and explained that she had a medical marijuana card and that Defendant knew she smoked marijuana, but that she would only smoke in the alley in the future. (Id.) Plaintiffs allege that Defendant began to ignore all of Plaintiffs' complaints. (Id. at 9.) Plaintiffs also complained to Rakow about their neighbors' use of ozone machines and air fresheners which irritated their lungs, eyes, and hearts. (Id. at 10.) Rakow informed Plaintiffs that he was “going to take [n]o further action” with regards to their complaints. (Id. at 9.)

         Plaintiffs claim that they were diagnosed with bronchitis and needed breathing treatments at a hospital on two consecutive days. (Id. at 10.) Plaintiffs further allege that Defendant's inaction caused Plaintiffs other injuries, including: anorexia, dry eyes, dry sinuses, PTSD, loss of financial services, and elevated blood pressure, among many other ailments. (Id. at 20.) Additionally, Plaintiffs claim that their service animal suffered three grand mal seizures and passed away due to exposure to methamphetamine in the apartment. (ECF No. 34 at 4.)

         Plaintiffs requested that Defendant install specialized smoke detectors that could positively identify cigarette and marijuana use, but Defendant refused. (ECF No. 16 at 12.) In response, Plaintiffs began speaking to their neighbors themselves and frequently called the police and fire departments to investigate their neighbors' apartments. (ECF No. 23 at 1.) Longmont Police reported smelling sweet detergent, cat urine, air fresheners, scented candles, and patchouli. (ECF No. 34 at 4.) Plaintiffs claim that these are the scents that they are sensitive to, and thus their complaints to police were justified. (Id.)

         On July 13, 2017, Defendant's Executive Director, David Bitler (“Bitler”), e-mailed Plaintiffs explaining that Plaintiffs' phone calls to Defendant and conversations with other residents were bordering on harassment and needed to cease immediately. (ECF No. 49 at 5.) Bitler's e-mail also explained that “[i]f a resident is caught smoking in violation of the lease [Defendant] will deal with that resident but [Defendant] will no longer respond to [Plaintiffs'] multiple daily complaints regarding smelling smoke.” (Id.) Moreover, in the e-mail Bitler stated that given how unhappy Plaintiffs seemed, Defendant will allow them to rescind their lease. (Id.) He also warned Plaintiffs that if their behavior continues, they may be at risk of losing their housing. (Id.)

         On August 21, 2017, Defendant filed a Complaint in Forcible Entry and Detainer in Boulder County Court (the “FED Action”). (Id.) In the FED Action, Defendant sought to evict Plaintiffs, claiming that “Plaintiffs have repeatedly and relentlessly disturbed, harassed, and threatened other neighbor tenants in the complex.” (Id.) Plaintiff filed counterclaims in that action on August 31, 2017. (Id.) At a January 19, 2018 hearing, Plaintiffs and Defendant reached a stipulation with respect to Defendant's eviction claim, which required Plaintiffs to vacate the premises by 5:00 p.m. that day. (Id. at 6.) Plaintiffs' counterclaims remain pending in that action. (Id.)

         Meanwhile, Plaintiffs commenced this action on August 11, 2017. (Id.) Plaintiffs raise four causes of action in their Complaint: (1) Failure to Accommodate in violation of the FHA (claim one) (ECF No. 16 at 10), (2) retaliation in violation of the FHA (claim two) (id. at 14), (3) violation of Plaintiff's privacy rights (claim three) (id. at 17), and breach of contract (claim four) (id. at 18). Senior United States District Judge Lewis T. Babcock dismissed claim three as legally frivolous, and ordered the remaining claims drawn to a presiding judge. (ECF No. 17 at 4-6.)

         III. ANALYSIS

         Plaintiffs' remaining three claims are for failure to accommodate in violation of the FHA (claim one), retaliation in violation of the FHA (claim two), and breach of contract (claim four). Defendant filed their Motion on February 27, 2018, arguing that all of Plaintiffs' remaining claims should be dismissed for failure to state a claim. (ECF No. 23.) In the alternative, Defendant asks the Court to stay any claims that survive dismissal pending resolution of Plaintiffs' counterclaims in the FED Action.

         Judge Varholak recommended denying Defendant's Motion with respect to claims one and two (Plaintiffs' FHA claims), and granting it with respect to claim four (Plaintiffs' breach of contract claim). (ECF No. 49.) Judge Varholak also denied Defendant's motion to stay proceedings. (Id. at 16.) Plaintiffs filed an Objection to Judge Varholak's recommended denial of claim four. (ECF No. 34.) Defendant responded to Plaintiff's Objection, but did not timely file their own objections to Judge Varholak's Recommendation. (ECF No. 58). Thus, the Court analyzes the portions of Judge Varholak's Recommendation pertaining to Plaintiff's ...

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